Joiner v. Smith

• Decision Date: 11 September 1978
• Docket Number: No. 56203,56203
• Citation: 248 S.E.2d 296,147 Ga.App. 165
• Parties: JOINER v. SMITH.
• Court: Georgia Court of Appeals

Page 296

248 S.E.2d 296

147 Ga.App. 165

JOINER v. SMITH.

No. 56203.

Court of Appeals of Georgia.

Submitted June 27, 1978.

Decided Sept. 11, 1978.

Richard M. Cowart, Macon, for appellant.

Elsie H. Griner, Nashville, for appellee.

BIRDSONG, Judge.

This case involves alleged procedural irregularities in an adoption proceeding. The facts show that appellant and his ex-wife were divorced in 1969 with custody of their minor child granted to the mother. The mother subsequently married Smith. In 1976, an attempt was made by Smith to adopt the minor child. Appellant could not be located, thus personal service was not accomplished. Finally, on September 19, 1977, appellant having returned to this state, personal service was obtained and a hearing was set for September 23, 1977. With the consent of attorneys for both parties, the hearing was rescheduled for October 21, 1977. Thereafter, appellant's attorney obtained a continuance until December 15, 1977. On December 15, 1977, the parties appeared for the hearing but because of an irregularity in the pleadings and the absence of a reporter, the attorney for the appellant requested a further continuance which was granted without objection by appellee. Earlier that same day, before the hearing of December 15, 1977, appellant filed objections to the adoption and at the time set for the hearing, informed the opposite party and the court that the objection had been filed. On January 12, 1978, Smith moved to dismiss the objections on the ground that they were not filed within ten days of the scheduled hearing as required by Ga.L.1969, p. 927, as amended (Code Ann. § 74-414). A hearing was held on the motion to dismiss on January 26, 1978, and the trial court dismissed the objections on March 13, 1976. This appeal followed. Held:

Smith argues that the case was scheduled for hearing on September 23 and objections were not filed until December 15, a period of over 80 days; thus the objections were subject to dismissal as being untimely. Joiner argues that the order of the trial court setting the hearing did not specify the last day that objections could be filed and thus the order was procedurally deficient. He further argues that he was entitled to a hearing as a matter of due process of law.

We agree with the latter contention. The interest of a parent in the companionship, care, custody and management of his child commands a respect which is lacking when appeal is made to liberties which derive merely from procedural matters or shifting economic arrangements. Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 93 L.Ed. 513. It is a cardinal principle that custody, care and nurture reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Prince v. Massachusetts, 321 U.S. 158, 166, 176, 64 S.Ct. 438, 88 L.Ed. 645. We concede that determination of substantial rights based upon a procedural defect is cheaper and easier than upon individualized determination. But when the procedure forecloses the determinative issues of competence and care, it needlessly risks injury to the paramount interests of both parent and child. Our law is such that Georgia parents are constitutionally entitled to a hearing on their fitness before their children are...